Who has the burden of proof where dismissal reason is disputed?

S 98 (1) of the Employment Rights Act 1996 states that it is for the employer to show the reason for dismissal. But what’s the position where the claimant argues that the real reason is not that put forward by the employer, but an entirely different reason, for example, making a protected disclosure? Where does the burden of proof lie?

Roche claimed that Dr Kuzel was dismissed for misconduct, or alternatively, some other substantial reason – there had been a complete breakdown in the working relationship with one of her colleagues and she had broken an agreement reached with her manager, who was the Global Head of Regional Affairs, meaning that he had lost all trust in her. Dr Kuzel argued the dismissal was because she had made three protected disclosures.

The tribunal held that Dr Kuzel’s dismissal was unfair as Roche had failed to make out a potentially fair reason for the dismissal. However, the dismissal was not automatically unfair, and therefore the compensation ‘cap’ applied, as Dr Kuzel had not established that the reason for her dismissal was the fact that she had made protected disclosures. The EAT upheld Dr Zuzel’s appeal holding that the tribunal had not correctly approached the burden of proof.

The Court of Appeal ruled that the tribunal got it ‘right first time’. According to Mummery LJ, the meaning of S.98(1) is “blindingly obvious”. It is for the employer to show that it had a potentially fair reason for dismissing the employee. If the employee claims there is a different reason, the burden of proof does not pass to the him or her. All the employee needs to do is challenge the evidence put forward by the employer and produce some evidence to support his or her assertion that the dismissal was for an entirely different reason.

Kuzel v Roche Products Limited

[2008] EWCA Civ 380 Case No: A2/2007/0630